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EXHIBIT A 



EXHIBIT A 



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L».4 

KEVIN V. RYAN (CSBN 1 18321) United States Attorney 

ROSS W. NADEL (CSBN 87940) Chief, Criminal Division F H L 

MARTHA BOERSCH (CSBN 126569) J , , 
JONATHAN R. HOWDEN (CSBN 97022) - AN 3 [M14 
PETER AXELROD (CSBN 190843) 
Assistant United States Attorneys WIEKING 

momma COURT 

I I-Hulrilbl cum; 

HALLIE A. MITCHELL (CSBN 210020) "STRICT OF CALM-'OFiNIA 
Trial Attorney, U.S. Department of Justice 

450 Golden Gate Avenue, Box 36055 

San Francisco, California 94102 Telephone: (415) 436-7200 



Attorneys for Plaintiff 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

UNITED STATES OF AMERICA, ) No. CR 00-0284 M] J 

) Plaintiff, ) MOTION IN LIMINE TO ADMIT 
) STATEMENTS OF YULIA v. ) TYMOSHENKO AS CO-CONSPIRATOR 

) STATEMENTS PAVEL LAZARENKO, ) 
) Date: February 6, 2004 Defendant. ) Time: 9:30 am 

) 

Courtroom: Hon. Martin J. Jenkins 

The United States hereby moves in limine to admit statements made by Yulia 

Tymoshenko, an un-indicted co-conspirator, during the course of and in the furtherance of the 

conspiracy and the scheme to defraud. 

// 

// 

// 



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ARGUMENT 

I. THE STATEMENTS OF YULIA TYMOSHENKO, A NON-TESTIFYING CO 

CONSPIRATOR. ARE ADMISSIBLE IN EVIDENCE UNDER FED. R. EV]D. 801 (d)(2) 

A. Legal Authority 

Under Fed. R. Evid. 801(d)(2)(E), "a statement by a coconspirator of a party during the 

course of and in furtherance of the conspiracy' is not hearsay. United States v. Crespo de Llano, 

838 F. 2d 1006, 1017 (9th Cir. 1987). To admit statements of a coconspirator against a 

defendant, there the government need only establish by a preponderance of the evidence that (1) 

the declarant and the defendant were members of a conspiracy; and (2) the statements were made 

during and in furtherance of the conspiracy. Bogiaij/ v. United States, 483 U.S. 171, 175 

(1987). Once a conspiracy is shown, the prosecution need only present slight evidence 

connecting the defendant to the conspiracy. United States v. Mason, 658 F. 2d 1263, 1269 (9th 

Cir. 1981). Under Bourjaily, the requirements of Rule 801(d)(2)(E) and the confrontation clause 



of the Sixth Amendment are identical. 483 U.S. at 182-84. 

A conspiracy need not be charged in order to allow the introduction of a co-conspirator's 
statement under the rule. United States v. Portac, Inc., 869 F. 2d 1288, 1294 (9th Cir. 1989). 
Participation as an aider and abettor is sufficient, as a concert of action creates a conspiracy for 
purposes of the evidentiary rule. I_d. gag also, United States v. LeFever, 798 F. 2d 977, 983 

(7th Cir. 1986); United States v. Reynolds, 919 F. 2d 435, 439 (7th Cir. 1990); and 
United States 

v. Blankenship, 954 F. 2d 1224, 1231 (6th Cir. 1992). Moreover, evidence against one 

defendant in a conspiracy can properly be considered against another defendant given evidence 

linking each to the conspiracy. United States v. Nixon, 918 F. 2d 895, 906 (1 1th Cir. 1990). 

In determining whether a statement was made "in furtherance of a conspiracy, the focus 

is not on its actual effect in advancing the goals of the conspiracy, but on the declarant's intent in 

making the statement. United States v. Zavala-Sierra, 853 F.2d 1512, 1516 (9th Cir. 1988). 

Thus, 

When a declarant seek[s] to induce [the listener] to deal with the conspirators or in any other way to 
cooperate or assist in_ achieving the conspirator's common objective, the declaration may be admissible 
[as a co-conspirator statement]. 

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR 
STATEMENTS [CR 00-0284-MJJ] 2 



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Statements concerning activities of the conspiracy, including future plans, also may become admissible 
when made with such intent. 

United States v. Foster, 71 1 F. 2d 871, 880 (9th Cir. 1983). A statement is "in furtherance" of a 

conspiracy if it furthers the common objectives of the conspiracy or sets in motion transactions 

that are an integral part of the conspiracy. United States v. Laygon, 720 F. 2d 548, 556-57 (9th 

Cir. 1983), cert, denied, 465 U.S. 1069; 104 S. Ct. 1423; 79 L.Ed. 2d 748 (1984). Statements 

made to induce enlistment or further participation in the group's activities are considered to be 

"in furtherance" of the conspiracy. United States v. Dorn, 561 F. 2d 1252, 1256-57 (7th Cir. 

1977) (per curiam), overruled on other grounds, United States v. Read, 658 F.2d 1225, 1236, n. 

6 (7th Cir. 1981). Likewise, statements made to prompt further action on the part of 

conspirators are admissible under 801(d)(2)(E), United States v. Dendall, 665 F.2d 126, 133 (7th 

Cir. 1981), cert, denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed. 2d 140 (1982), as are those 

made to "reassure" members of a conspiracy's continued existence. United States v. Mason, 658 

F.2d 1263, 1270 (9th Cir. 1981). Statements made to allay a co-conspirator's fears are 

admissible. Eubanks, 591 F.2d at 521, n. 7. Most importantly, statements made to keep 

co-conspirators abreast of an ongoing conspiracy's activities satisfy the "in furtherance of 

requirement. United States v. Eaglin, 571 F. 2d 1069, 1083 Cir. 1977), cert, denied , 435 



U.S. 906, 98 S.Ct. 1453, 55 L.Ed.2d 497 (1978); United States v. Moody, 778 F.2d at 1382 

(statements made to "higher ups" of the group are "in furtherance"); see also, Crespo de Llano, 

830 F.2d at 1543: (Statements are in furtherance of the conspiracy if they are made to keep a 

person abreast of the conspirator's activities, to induce continued participation in the conspiracy, 

or to allay fears.) 

A trial court has discretion to vary the order of proof in admitting a co-conspirator's 

statement; the statement may be admitted prior to the presentation of independent evidence of the 

conspiracy. United States v. Loya, 807 F. 2d 1483, 1490 (9th Cir. 1987) and United States v. Arbelaez, 
719 F. 2d, 1453, 1460 (9th Cir. 1983). 

B. The Charged Congoirg and the Scheme to Defraud 

Count One of the Second Superseding Indictment alleges a conspiracy to launder money 

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR STATEMENTS [CR 00-0284-MII] 3 



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V 



among the defendant, Peter Kiritchenko, and others between January 1992 and June 1999. The 

indictment generally alleges that the defendant and others conspired to launder the proceeds of 

extortion and fraud through various bank accounts, including accounts in the United States. The 

indictment alleges conspiracy that as part of the conspiracy Lazarenko, as a government official 

in Ukraine, would engage in various acts of extortion and fraud, and would receive funds that 

had been stolen, converted and taken by fraud, and would transfer the proceeds of this activity 

into bank accounts in Switzerland, Antigua, Poland, the United States, and elsewhere, and that he 

induced Kiritchenko to assist Lazarenko to open bank accounts in Switzerland, Antigua, Poland, 

and the United States, and to transfer the proceeds of fraud and extortion into and out of these 

bank accounts in an effort to conceal and disguise the nature, location, source, ownership, and 

control of the proceeds of the specified unlawful activity. The conspiracy count incorporates the 

wire fraud scheme to defraud, which more specifically alleges that the defendant received money 



and property from individuals and businesses on behalf of whom he was exercising his official 

authority. 

In particular, with respect to Ms. Tymoshenko, the indictment alleges that in 
approximately September 1995, Lazarenko, as First Vice Prime Minister of Ukraine, became 
responsible for the energy section in the Ukrainian government, and that in approximately 
December 1995, a Ukrainian company called United Energy Systems of Ukraine ("UESU"), 
which was created on November 20, 1995 by Yulia Tymoshenko, an associate of Lazarenko 's, 
was designated by the Ukrainian government as one of several companies to supply natural gas to 
Ukraine. UESU was given the authority to distribute natural gas to the Dnepropetrovsk region of 
Ukraine. From approximately December 1995 until sometime in 1997, UESU received 
deliveries of natural gas from RAO Gazprom pursuant to contracts entered on December 29, 
1995 and December 31, 1996 between RAO Gazprom, UESU, and others. Beginning in 
approximately January 1996, UESU fraudulently conveyed title to the imported natural gas to 
United Energy International, Ltd. ("UEIL"), an 85% shareholder of UESU that was created on 
October 17, 1995, in London, England by a Turkish national named Ercument Aksoy, at the 
direction of Yulia Tymoshenko, and fraudulently diverted to foreign bank accounts belonging to 
UEIL the payments from Ukrainian customers for the natural gas delivered by UESU. 

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR 
STATEMENTS [CR O0-0284-MJJ] 4 



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The indictment further alleges that between April 8, 1996 and December 31, 1996, rather 

than pay RAO Gazprom for the delivered gas with the money that had been transferred to UEIL, 

UEIL transferred approximately $140,000,000 to Somolli Enterprises, a Cypriot company that 

was registered in Cyprus on October 8, 1992, and was controlled by Yulia Tymoshenko and 

others. Between April 1996 and June 1997, Somolli Enterprises and UESU transferred a total of 

approximately $97,000,000 into accounts that were controlled by Kiritchenko in Switzerland, 

Poland, and the United States, including transfers totaling approximately $13,000,000 to bank 

accounts in the Northern District of California. Between February of 1996 and September of 1997, the 
money from Somolli, along with other funds, totaling more than 

transferred from Kiritchenko's accounts into accounts controlled by Lazarenko in Switzerland 

and Antigua. Thereafter, the indictment alleges, Lazarenko transferred portions of these funds 

from Switzerland into bank accounts in the Northern District of California, including two 

transfers of $14,000,000 each on August 1, 1997. 

Finally, part of the conspiracy includes the scheme to defraud alleged in Paragraphs 32 to 



38 of the indictment, which allege that the defendant, while a government official in Ukraine, 

exercised his official authority and influence in favor of, and to induce the grant of certain 

government benefits and privileges to Yulia Tymoshenko's businesses, among others, by taking 

certain official action, that between 1993 and 1997 he received over $200,000,000 from various 

companies, including Yulia Tymoshenko's businesses Somolli Enterprises ($84,000,000), UEIL 

($65,000,000), and UESU ($13,000,000). The indictment alleges that as a result of these actions, 

the people and government of Ukraine were deprived of money and of the defendant's right to 

honest services. 

C. Tvmoshenko's Statements and Background 

The United States will seek to admit as coconspirator statements under Fed. R. 801(d)(2) 

the following statements of Yulia Tymoshenko, and reserves the right to offer additional 

statements if the evidence warrants: 

1. L/moshenko statements to Neil Flieger. Eric Hoffman, Marika Jung and 

Vitaly Garber 

Vitaly Garber and Marika Jurach work for a company called Garber International 

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR STATEMENTS 
[CR 00-0284-MJJ] 



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Associates. In late 1996 their company was retained by UESU to "assist UESU in combatting 

allegations in the Western press that it was tied through corniption with politicians in Ukraine, 

principally to Pavel Ivanovich Lazarenko, the then-Prime Minister of Ukraine." fig Garber 302, 

X000088. Yulia Tymoshenko was his principal contact at UESU, and she explained to Garber 

that UESU was participating in a new gas distribution system set up by Lazarenko and. Q. She 

told Garber she wanted to assist LaZarenkO's political career and that part of what UESU was 

hiring Garber to do was to get favorable publicity for Lazarenko. 

Garber then hired Edelman Public relations in Washington, D.C. to represent UESU. 

Neil Flieger and Eric Hoffman worked for Edelman and had numerous meetings with Yulia 

Tymoshenko. Flieger and Hoffman will testify about statements she made to them about the 

work they were doing for Lazarenko, which UESU was paying for. 

These statements are in furtherance of the conspiracy because they were made "to induce 

[the listener] to deal with the conspirators or in any other way to cooperate or assist in achieving 

the conspirator's common objective," Foster, 711 F. 2d at 880, which in this case was to ensure 



that the defendant could maintain his political position so that he could continue to render 
official 

assistance to UESU in exchange for the money and financial assistance he was getting from 

UESU. 

2. Tymoshenko Statements to Serif Ercument Aksoy, Gravets 

Tymoshenko also made a number of statements to Serif Ercument Aksoy and Oleksander 

Gravets that the United States will seek to introduce as co-conspirator statements. Serif 

Ercument Aksoy was the nominal head of United Energy International ("UEIL") and worked 

with Tymoshenko in that business. Oleksandr Gravets was one of the founding members of 

UESU and worked with Tymoshenko in that business. These statements primarily concern the 

business operations of and relations between UEIL, UESU, and Somolli Enterprises during the 

course of the conspiracy. Some of the statements concern the defendant's relationship to UESU 

and his role in the Ukrainian gas market. These statements are in furtherance of the conspiracy 

and the scheme to defraud because they further the common objectives of the conspiracy and 

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR STATEMENTS [CR 00- 
0284-MJJ] 6 



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scheme and sets in motion transactions that were an integral part of the conspiracy, that is, they 

were made to further the goal of concealing and disguising the source, location, ownership and 

control of the funds that were paid to the defendant, and they were made to further the scheme to 

defraud by enlisting Aksoy and Gravets in that scheme and prompting further action on their part. 

Layton, 720 F. 2d at 556-57; Dendall, 665 F.2d at 133. 

The United States also seeks to introduce Tyrnoshenko's explanation to Gravets in Israel 

about the payments made to the defendant. These statements were in furtherance of the 

conspiracy because they were made to reassure Gravets, Mason, 658 F.2d at 170, and to allay his 

fears. Eubanks, 591 F.2d at 521, n. 7. Furthermore, the statements wer made to induce Aksoy 

and Gravets to deal with Tymoshenko and to cooperate or assist in achieving the conspiracy's 

common objective, Foster, 71 1 F. 2d at 880, 

3. Tymoshenko Statements to Andreas Petrou 

Andreas Petrou was a nominal director of Somolli Enterprises, and it was through Petrou 

that Tymoshenko, Gravets, and Oleksandr Tymoshenko set up Somolli Enterprises in Cyprus. 



The United States seeks to introduce Tymoshenko's statements to Petrou as co-conspirator 

statements made to further the common goals of the conspiracy, that is to set up a corporate 

structure designed to conceal and disguise the location, source, and ownership of funds paid to 

the defendant. M, 720 F. 2d at 556-57. Furthennore, the statements were made to 

induce Petrou to deal with Tyrnoshenko and to cooperate or assist in achieving the conspiracy's 

common objective. Foster, 711 F. 2d at 880. 

4. Tyrnoshenko Statements to Andrei Vavilov and other Russian Witnesses 

Andrei Vavilov was the Russian Deputy Minister of Finance in 1996 and he was a 

signatory on a contract between the Russian Ministry of Finance, the Russian Ministry of 

Defense, RAO Gazprom, UESU, and UEIL, pursuant to which UESU agreed to deliver goods to 

the Russian Ministry of Defense to extinguish its debt to RAO Gazprom for prior deliveries of 

gas to Ukraine. Vavilov met with Tyrnoshenko in Moscow, and during that meeting she 

explained the debt to Vavilov and the reasons why they wanted to execute the agreement. 

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR 
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Tymoshenko's statements to Vavilov are in furtherance of the conspiracy because the statements 

were made to induce Vavilov into action that would further the common objectives of the 

conspiracy, that is, to conceal and disguise the source of the funds that had been paid to the 

defendant and to advance the common goal of the conspiracy, which was to ensure that in 

exchange for his official actions, the defendant would receive funds from Tymoshenko and her 

companies and that his receipt of funds would not be discovered. 

5. Tvmoshenko Statements to Kleshma and Shostak 

Anatoliy Kleshnya and Anatoly Shostak worked at the State Committee for Material 

Resources of Ukraine. Each testified that the defendant instructed them to enter a contract with 

UESU for UESU to sell material goods to the government of Ukraine for its reserves. Each will 

testify about conversations they had with Yulia Tymoshenko regarding the pricing of the goods 

and the attempts to negotiate a contract. Ultimately no contract was entered because they 

believed that UESU was overcharging the government for the goods. 

The government will introduce these statements either as co-conspirator statements or as 



non-hearsay because they are not admitted for the truth of the matter. These statements were in 

furtherance of the conspiracy because they advanced a common goal of the conspiracy — to use 

the defendant's official position to garner benefits for UESU, in exchange for which the 

defendant received a portion of UESU' s profits. Furthermore, the statements are not hearsay, 

because they are not admitted for the truth of the matter asserted. 

6. Otherlvmoshenko Statements 

There may be other statements of Tymoshenko that the United States will seek to admit if 

they are in furtherance of the conspiracy. 

D. The Evidence of a Conspiracy 

Besides the statements themselves, which, of course, the Court can consider as evidence 

of the conspiracy, the United States will also introduce a variety of documents and other witness 

testimony that will demonstrate the existence of a conspiracy and Yulia Tymoshenko's 

participation in that conspiracy. These records will include bank records from Switzerland, the 

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR STATEMENTS [CR 00-0284-MJJ] 8 



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United States, England, Cyprus and other locations that demonstrate the payment of hundreds of 

millions of dollars to the defendant by companies controlled by Tymoshenko. It will also include 

documents from Cyprus, England and Ukraine demonstrating the formation and establishment of 

bank accounts for of Somolli Enterprises, UESU, and UEIL. The evidence will also include 

statements of other witnesses describing the relationship between the defendant and UESU and 

UEIL, testimony of the Swiss bankers about what the defendant told them about money he was 

receiving from UESU (that it was "commissions"), and Peter Kiritchenko's statements about the 

defendant's relationship to Tymoshenko and payments that were made by Tymoshenko to the 

defendant. The evidence will also include official records from Ukraine showing the official 

action the defendant took for the benefit of UESU or companies controlled by Tymoshenko, such 

as Directive 100 and the $200,000,000 guarantee. Finally, it will also include evidence of 

correspondence between RAO Gazprom and the defendant, and Tymoshenko and RAO 

Gazprom, regarding UESU's debts for the gas delivered in 1996. 

CONCLUSION 



For the foregoing reasons and based on the record herein, the United States respectfully 

moves to admit statements of Yulia Tymoshenko made in furtherance of the conspiracy and 

scheme to defraud. 

DATED: January 30, 2004 Respectfully submitted, 

KEVIN V. RYAN United Stzggs Attorney 

[1 

JONATHAN HOWDEN PETER AXELROD Assistant United States Attorneys 

HALLIE MITCHELL Trial Attorney, U.S. Department of Justice 

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR 
STATEMENTS [CR O0-0284-MJJ] 9